Common use of Swap Contracts Clause in Contracts

Swap Contracts. Borrower may enter into Swap Contracts with Lender (or its Affiliates), or with another financial institution acceptable to Lender, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan, on such terms and conditions as are mutually approved by Borrower and Lender (or its Affiliates). So long as any Mortgage encumbers the Project and the Swap Contract has been provided by Lender (or its Affiliates) in connection with the Loan, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of Lender, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Lender (or its Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender relating to the Note shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its signature below, Borrower waives any right to prepay the Loan, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliates) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.

Swap Contracts. Borrower may (a) On or before the Closing Date, the Trustee, not in its individual capacity but solely in its capacity as Trustee, on behalf of the Trust, shall enter into the Swap Contracts and related agreements with Lender the Swap Counterparty. The Paying Agent shall perform the duties and obligations of the Trustee under the Swap Contracts. (b) On the Business Day prior to each P&I Advance Date, based on the reports provided by each Master Servicer pursuant to Section 3.12(e), information that the Paying Agent obtains from each Swap Counterparty and the respective Swap Contract, and subject to the priorities set forth in Sections 4.01(a), 4.01(b) and 4.01(d) hereof, the Paying Agent shall calculate the Class A-2SFL Net Swap Payment and the Class A-3SFL Net Swap Payment and notify the related Swap Counterparty in accordance with the terms of the respective Swap Contracts. (c) No later than 4:00 p.m. New York City time on each Distribution Date, the Paying Agent shall remit the Class A-2SFL Net Swap Payment and the Class A-3SFL Net Swap Payment, if any, to the related Swap Counterparty from the related Floating Rate Account; provided, that upon the occurrence and during the continuation of a Class A-2SFL Distribution Conversion or Class A-3SFL Distribution Conversion, the Paying Agent shall not make such payments to such Swap Counterparty, respectively. Promptly upon receipt of any payment or other receipt in respect of the Swap Contracts, the Paying Agent shall deposit the same into the related Floating Rate Account. (d) The Trustee (or the Paying Agent on the behalf of the Trustee) shall at all times enforce the Trust's rights under the Swap Contracts. In the event of a Swap Default, the Trustee (or the Paying Agent on its Affiliatesbehalf) shall promptly provide written notice to the Holders of the Class A-2SFL Certificates and the Class A-3SFL Certificates, as applicable, and shall be required, subject to the Trustee's or the Paying Agent's, as applicable, determination that costs of enforcement will be recoverable from or indemnified by the Holders of the Class A-2SFL Certificates and the Class A-3SFL Certificates, respectively, to take such actions (following the expiration of any applicable grace period specified in the Swap Contracts), unless otherwise directed in writing by the Holders of 25% (by Certificate Balance) of the Class A-2SFL Certificates or with another financial institution Class A-3SFL Certificates, as applicable, to enforce the rights of the Trust under the applicable Swap Contract as may be permitted by the terms thereof and use any Swap Termination Fees received from the applicable Swap Counterparty to enter into a replacement interest rate swap contract on substantially identical terms or on such other terms reasonably acceptable to Lenderthe Trustee (or the Paying Agent on its behalf), for with a replacement swap counterparty that would not cause a Rating Agency Trigger Event, subject, in each case, to written confirmation by the purpose Rating Agencies that such action will not result in a qualification, downgrade or withdrawal of hedging and protecting against the then-current ratings of the Certificates. If the costs attributable to entering into a replacement interest rate fluctuation risks with respect swap contract would exceed the amount of any Swap Termination Fees, a replacement interest rate swap contract shall not be entered into and any such proceeds will instead be distributed, pro rata, to the LoanHolders of the Class A-2SFL Certificates or Class A-3SFL Certificates, as applicable, on such terms and conditions as are mutually approved by Borrower and Lender (or its Affiliates)the immediately succeeding Distribution Date. So long as any Mortgage encumbers the Project The Trustee and the Swap Contract has been provided by Lender Paying Agent shall be entitled to require reasonable assurances of payment (including, without limitation, reasonable indemnity therefor) from the Holders of the Class A-2SFL Certificates or its Affiliates) the Class A-3SFL Certificates prior to the incurrence of any costs in connection with the Loanenforcement of the related Swap Contract. Any Class A-2SFL Distribution Conversion and Class A-3SFL Distribution Conversion shall become permanent following the determination by the Trustee (or the Paying Agent acting on its behalf) not to enter into a replacement interest rate swap contract and distribution of any Swap Termination Fees to the Holders of the Class A-2SFL Certificates and the Class A-3SFL Certificates, Borrower’s obligations (including any payment obligations) with respect to any respectively. Any such Swap Contract Default (or termination of the Swap Contract) and the consequent Class A-2SFL Distribution Conversion or Class A-3SFL Distribution Conversion shall be secured by the Deeds not, in and of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of Lenderitself, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Lender Upon any change (or its Affiliatesnotification to the Paying Agent that such change is imminent) are independent Agreements governed by in the written provisions payment terms on the Class A-2SFL Certificates or Class A-3SFL Certificates including as a result of a Class A-2SFL Distribution Conversion or a Class A-3SFL Distribution Conversion, termination of a Class A-2SFL Distribution Conversion or a Class A-3SFL Distribution Conversion, a Swap Default or the cure of a Swap Default, the Paying Agent shall promptly notify DTC of the change in payment terms. (e) In the event that the corresponding Swap ContractsContract is terminated and no replacement interest rate swap agreement is entered into within 30 days of such termination, the Paying Agent shall provide notice of such termination to the Class A-2SFL Certificateholders, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written notice shall include: "The Swap Contracts, and any payoff statement from Lender relating Contract with respect to the Note shall not Class A-2SFL Certificates is terminated as of [date]. Certificateholders and beneficial owners that are Plans are advised that the Exemption will no longer apply to the Swap Contracts except Class A-2SFL Certificates, effective 60 days after the receipt of this notice. "Exemption", as otherwise expressly provided used in such payoff statementthis notice, shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. By its signature belowReg. 14,979 (March 28, Borrower waives any right 2002), granted by the U.S. Department of Labor to prepay J.P. Morgan Securities Inc. All other capitalized terms used in this notxxx xxxxx xave the Loan, meaning assigned to them in whole or in part, without payment of any the Pooling and all amounts specified or required under Servicing Agreement." In the terms of any Swap Contracts (event that the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliates) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the corresponding Swap Contract or otherwiseis terminated and no replacement interest rate swap agreement is entered into within 30 days of such termination, the Paying Agent shall provide notice of such termination to the Class A-3SFL Certificateholders, which notice shall include: "The Swap Contract with respect to the Class A-3SFL Certificates is terminated as of [date]. Borrower therefore agrees Certificateholders and beneficial owners that are Plans are advised that the Exemption will no longer apply to pay any and all Indemnified Amounts if the Loan is prepaidClass A-3SFL Certificates, whether voluntarily or effective 60 days after the receipt of this notice. "Exemption", as used in this notice, shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March 28, 2002), granted by reason the U.S. Department of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest Labor to J.P. Morgan Securities Inc. All other capitalized terms used in any Property giving Lender this notxxx xxxxx xave the right meaning assigned to accelerate the maturity of the Loan as provided them in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient Pooling and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Servicing Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents."

Swap Contracts. Borrower Facility No. 1 may enter into Swap Contracts with Lender (also be used by the Borrowers to obtain "swap contracts" from time to time, which term shall include any agreement, whether or its Affiliates)not in writing, or with another financial institution acceptable relating to Lender, for the purpose of hedging and protecting against any transaction that is an interest rate fluctuation risks with respect to the Loanswap, on such terms and conditions as are mutually approved by Borrower and Lender (basis swap, forward rate transaction, commodity swap, commodity option, equity or its Affiliates)equity index swap or option, bond, note or bill xxxion, interest rate option, forward foreign exchange transaction cap. So long as collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option or any Mortgage encumbers the Project and the Swap Contract has been provided by Lender (or its Affiliates) in connection with the Loanother, Borrower’s obligations similar transaction (including any payment obligationsoption to enter into any of the foregoing) with respect or any combination of the foregoing, and, unless the context otherwise clearly requires, any master agreement relating to or governing any such or all of the foregoing. Swap Contract contracts shall be secured issued by Bank of America National Trust and Savings Association or its designated affiliate (herein, a "swap provider"), subject to a reimbursement obligation on the part of the Bank (which, in turn, will be reimbursed by the Deeds Borrowers). The termination value of Trust and all such swap contracts outstanding at any other Collateralone time (including any amounts then subject to reimbursement by the Borrowers, but not then reimbursed) may not exceed, in any event, $3,000,000. All such swap contracts shall have maturity dates not later than, and be co-terminous with, the Termination Date. Swap contracts may be issued only for the reasonable requirements of the Borrowers' business, and no swap contracts may be issued for speculative purposes. In further regard to these swap contracts, the Borrowers agree: (a) that any default by Borrower under any such Swap Contract shallsum for which the Bank reimburses the swap provider pursuant hereto may, at the discretion option of Lenderthe Bank, constitute an Event of Default be added to the principal amount outstanding under Facility No. 1. This amount will bear interest and be due as described elsewhere in this Agreement. (b) that if there is a default under this Agreement. All Swap Contracts, if any, between Borrower to immediately prepay and Lender make the Bank whole for its liability to the swap provider for any outstanding swap contracts. (or its Affiliatesc) are independent Agreements governed by that the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms issuance of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, swap contract (and any payoff statement from Lender relating amendment to any swap contract) is subject to the Note shall not apply Bank's and the swap provider's written approval and must be in form and content satisfactory to the Swap Contracts except Bank and the swap provider. (d) at the Bank's or the swap provider's request, to sign a form application and agreement for swap contracts, commonly known as otherwise expressly provided in such payoff statement. By its signature below, Borrower waives any right to prepay the Loan, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts an "ISDA Contract." (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliatese) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract or otherwise. Borrower therefore agrees to pay any issuance and/or other fees that the Bank or the swap provider notifies the Borrowers will be charged for issuing and all Indemnified Amounts if processing swap contracts for the Loan is prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan DocumentsBorrowers.

Swap Contracts. Prior to or substantially concurrently with the Closing Date (and as an additional condition precedent to the obligation of Agent and Lenders to make advances hereunder), Borrower may shall enter into Swap Contracts with Wachovia Bank or with another Lender (or its Affiliateswith Affiliates of Wachovia Bank or such other Lender), or with another financial institution acceptable satisfactory to LenderAdministrative Agent in its reasonable discretion, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the LoanLoans, with a notional amount of at least the Aggregate Commitment and a term at least until the Maturity Date, and on such additional terms and conditions as are mutually approved by Borrower Administrative Agent in its reasonable discretion and as are reasonably acceptable to Wachovia Bank or such other Lender (or its their Affiliates), or such other financial institution, as applicable. So long as any Mortgage the Deed of Trust encumbers the Project and the Swap Contract has been provided by Wachovia Bank or another Lender (or its any of their Affiliates) in connection with the LoanLoans, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds Deed of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of LenderAdministrative Agent, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Wachovia Bank or any other Lender (or its any of their Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender Administrative Agent relating to the Note Notes shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its signature below, Borrower waives any right under California Civil Code Section 2954.10 (to the extent applicable) or otherwise to prepay the LoanLoans, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan Loans may result in Lender (or its Affiliates) Lenders and their Affiliates incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract Contracts or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is Loans are prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender Administrative Agent the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s Lenders’ willingness to offer the Loan Loans to Borrower is sufficient and independent consideration, given individual weight by BorrowerLenders, for this waiver. Borrower understands that Lender Lenders would not offer the Loan Loans to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.

Swap Contracts. Borrower may enter into Swap Contracts with Lender (or its Affiliates), or with another financial institution acceptable to Lender, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan, on such terms and conditions as are mutually approved by Borrower and Lender (or its Affiliates). So long as any Mortgage encumbers the Project and the Swap Contract has been provided by Lender (or its Affiliates) in connection with the Loan, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of Lender, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Lender (or its Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender relating to the Note shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its respective signature below, each Borrower waives any right to prepay the Loan, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliates) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.

Swap Contracts. Borrower may enter into Swap Contracts with Lender (or its Affiliates), or with another financial institution acceptable to Lender, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan, on such terms and conditions as are mutually approved by Borrower and Lender (or its Affiliates). So long as any Mortgage Deed of Trust encumbers the any Project and the Swap Contract has been provided by Lender (or its Affiliates) in connection with the Loan, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of Lender, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Lender (or its Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender relating to the Note shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its respective signature below, each Borrower waives any right under California Civil Code Section 2954.10 (to the extent applicable) or otherwise to prepay the Loan, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliates) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property of the Properties giving Lender the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.

Swap Contracts. Prior to or substantially concurrently with the Closing Date (and as an additional condition precedent to the obligation of Agent and Lenders to make advances hereunder), Borrower may enter into Swap Contracts with Wachovia Bank or with another Lender (or its Affiliateswith Affiliates of Wachovia Bank or such other Lender), or with another financial institution acceptable satisfactory to LenderAdministrative Agent, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the LoanLoans, with a notional amount of at least the Aggregate Commitment and a term at least until the Maturity Date, and on such additional terms and conditions as are mutually approved by Borrower and Administrative Agent and as are acceptable to Wachovia Bank or such other Lender (or its their Affiliates), or such other financial institution, as applicable. So long as any Mortgage Deed of Trust encumbers the a Project and the Swap Contract has been provided by Wachovia Bank or another Lender (or its any of their Affiliates) in connection with the LoanLoans, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of LenderAdministrative Agent, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Wachovia Bank or any other Lender (or its any of their Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender Administrative Agent relating to the Note Notes shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its signature below, Borrower waives any right under California Civil Code Section 2954.10 (to the extent applicable) or otherwise to prepay the LoanLoans, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan Loans may result in Lender (or its Affiliates) Lenders and their Affiliates incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract Contracts or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is Loans are prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender Administrative Agent the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s Lenders’ willingness to offer the Loan Loans to Borrower is sufficient and independent consideration, given individual weight by BorrowerLenders, for this waiver. Borrower understands that Lender Lenders would not offer the Loan Loans to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.

Swap Contracts. Borrower may enter into Swap Contracts with Lender (or its Affiliates), or with another financial institution acceptable to Lender, for the purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan, on such terms and conditions as are mutually approved by Borrower and Lender (or its Affiliates). So long as any Mortgage encumbers the any Project and the Swap Contract has been provided by Lender (or its Affiliates) in connection with the Loan, Borrower’s obligations (including any payment obligations) with respect to any such Swap Contract shall be secured by the Deeds of Trust and any other Collateral, and any default by Borrower under any such Swap Contract shall, at the discretion of Lender, constitute an Event of Default under this Agreement. All Swap Contracts, if any, between Borrower and Lender (or its Affiliates) are independent Agreements governed by the written provisions of the Swap Contracts, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of any Notes or other Loan Documents, except as otherwise expressly provided in the written Swap Contracts, and any payoff statement from Lender relating to the Note shall not apply to the Swap Contracts except as otherwise expressly provided in such payoff statement. By its signature below, Borrower waives any right under California Civil Code Section 2954.10 (to the extent applicable) or otherwise to prepay the Loan, in whole or in part, without payment of any and all amounts specified or required under the terms of any Swap Contracts (the “Indemnified Amounts”). Borrower acknowledges that prepayment of the Loan may result in Lender (or its Affiliates) incurring additional losses, costs, expenses and liabilities, including lost revenues and lost profits in connection with the Swap Contract or otherwise. Borrower therefore agrees to pay any and all Indemnified Amounts if the Loan is prepaid, whether voluntarily or by reason of acceleration, including acceleration upon any transfer or conveyance of any right, title or interest in any Property giving Lender the right to accelerate the maturity of the Loan as provided in the Loan Documents. Borrower agrees that Lender’s willingness to offer the Loan to Borrower is sufficient and independent consideration, given individual weight by Borrower, for this waiver. Borrower understands that Lender would not offer the Loan to Borrower absent this waiver. Notwithstanding anything to the contrary contained in this Agreement, any obligations of Borrower under any Swap Contracts owed to Wachovia Bank, N.A. (or any of its Affiliates) shall, at Wachovia Bank, N.A.’s (or its Affiliates’) discretion, be secured pari passu with any and all indebtedness and obligations of Borrower secured pursuant to the Loan Documents.